Scooter Libby, Ted Wells and the ethnic mashup trial

What’s the best way to turn a house-of-cards political show trial with vague ethnic overtones into a game of 52-card-pickup? Ted Wells.

But first, start with Patrick
Fitzgerald, an Irish prosecutor out of Chicago complete with customized Gaelic monicker, seeking a conviction of a Jewish lawyer acting as a high officer in a Texas-inflected WASP-dynasty administration for lying about a crime that did not take place. Not just any Jewish Ivy League White House lawyer, but according to Slate’s John Dickerson the “neocon’s neocon” (or what Grammy Hall would call “a real Jew”) — in an administration spurned by paleoconservatives for, in all but so many words, being too Jewish.

Some of the more conspiracy minded find it “very interesting” that the sacrificial lamb for whatever it was the right hand did without the left hand approving in the preposterous Valery Plame scandal, but I do not credit that. Their only proof of it is that, well, Libby is a Jew, and he’s the only one who was indicted, and therefore they only indicted a Jew. That is a tautology, however, not proof, and there is no evidence of bias against Jews in the Bush Administration (far from it) or on the part of Fitzgerald, the prosecutor.

Nonetheless, the ethnic theme is there, as it always is on some level. In a more recent story, Dickerson manages to locate, in a very odd psychological phenomenon, a “yarmulke of pink” on the balding head of Fitzgerald himself! But Dickerson wisely focuses in his piece on the considerable talent, varied technique and racial/ethnic scrambling by the master fixer, the defense lawyer to the political stars, Ted Wells.

Ted Wells has always surfed smoothly on ethnic waves.

I worked for Ted when he was a partner at one of New Jersey’s top firms, Lowenstein Sandler, in the mid 1990’s. Lowenstein was, among the large New Jersey firms, the definitive go-go Jewish upstart firm. Ted and I shared, in different eras, the same mentor, Matthew Boylan, a charismatic, cigar-smoking Irishman of intellectual bent who had recruited Ted to come to that unlikely venue to build his career. That is where the comparison ends: Ted eventually far outshone his mentor. We did not work closely — I was never integrated into his team — but he was already a legend by then, including in his own office, whose walls were plastered with newspaper clippings of his various headline-grabbing acquittals of various medium- and large-size politicos caught with their hands innocently shtupped in the public cookie jar.

(Read the rest)

Ted, a tall, handsome, mustachioed black man with both an MBA and a law degree from Harvard, was virtually never in the office. Unlike Boylan, whose idea of trial preparation allegedly was to have an associate tell him what the case was about on the way to jury selection, Ted was — unless he was hosting a Democratic Party fundraiser — where the case was, physically and mentally. He was totally enmeshed in an upcoming trial and its preliminaries (legend had it — I did not see), and had devised a system whereby associates, paralegals, other partners and administrative assistants worked seamlessly to enable him to feel no friction whatsoever as he assimilated everything about the case, spent his waking hours preparing for court, trying the case and, usually, winning. To this day one of the things that struck me most about Ted’s world was that he was the only attorney at Lowenstein Sandler whose voice mail had been disabled: Listening to stemwinder voice messages was not going to be part of his system. (To this day I envy that perk and pathetically simulate it by mostly ignoring voice mail.)

Many of Ted’s partners were in awe of him, some were resentful and jealous, but none were surprised when he left and brought his practice, already national in scope, to Paul Weiss (taking not a single Lowenstein underling with him) in 2000. One then-senior partner told me, “We consider ourselves fortunate he stayed as long as he did.” Ted has become known as the “go-to” white-collar litigator for politicians in trouble, Democrats and Republicans alike, especially when trials are taking place before black juries who, quite understandably, are pretty inclined to to listen pretty closely to this pretty man.

Thus Ted Wells, the black Ivy League lawyer who built his career with an Irish rabbi in an upstart Jewish firm and eventually moved it to the ultimate old-line Jewish white shoe firm, is as apt a man to step into this Irish stew of a show trial. Dickerson picks up the ethnic and other colors in Ted Wells’s opening statement evocatively:

As his presentation wore on, Wells got his blood flowing. He got chatty and colloquial. “Mr. Libby was a very busy man, but he wasn’t stupid,” he said. He threw around a lot of “doggone” this and “doggone” that. He described a sudden recollection by one witness “like it came out of the sky, like a lightning bolt went into his head.” He did impersonations: At one point, when characterizing the prosecution’s narrative, he lapsed into “white person,” the highly nasal formal patois of the Caucasian diction teacher. He did a little Jewish: “You want to talk about the week this guy was having?” In a debate with Fitzgerald and the judge, he dismissed an opposing view by saying “izzzzzitzzzzit.” It sounded like a dying neon bulb and yet accurately conveyed his view that the argument was absurd.

The trouble with figuring out if a lawyer is perfect for a case is that there are no controls. You can’t run parallel trials of the same parties, facts, judges and juries to test attorneys. I once asked the head of another firm, who attended the successful civil trial of one of his own partners on a claim of professional malpractice, what he thought of while watching another lawyer try a case on his firm’s behalf. The experience drove him up the wall, he told me, although obviously the lawyer had done a good enough job to win.

But we all like watching shows such as Ted Wells is going to put on, and if there were any way I could be in Washington to see it, I would. Ted is in all probability a bigger trial presence than that of the experienced Fitzgerald, but not by a large margin. Says the Washington Post:

Seeing Fitzgerald in action, says Los Angeles lawyer Anthony Bouza, a college classmate, is “like watching a sophisticated machine.” Colleagues speak in head-shaking tones of Fitzgerald’s skills in taking a case to trial. A Phi Beta Kappa math and economics student at Amherst before earning a Harvard law degree in 1985, he has a gift for solving puzzles and simplifying complexity for a jury.He’s no slouch at stagecraft, either. At the trial of a Mafia hit man, the defense argued that a ski mask — part of what Fitzgerald called a “hit kit” that included surgical gloves, a gun and hollow-point bullets — was really just a hat. (The defense also said the surgical gloves were for putting ointment on the defendant’s ailing dog.) During closing arguments, Fitzgerald startled the jury by rolling up one leg on his lawyerly dark suit.

“These are just shorts, ladies and gentlemen,” he said, according to one account. “These are just shorts.”

Showmanship and ethnic shtick ultimately do not win cases: One colleague told me that there was nothing more disheartening than hearing from a juror, after losing a trial, that “You were the better lawyer but we couldn’t agree with your case.” You never want to be the show; you want your message to be the show. For his part, Ted Wells has already demonstrated an ability to break through whatever ethnic tension might be lurking in the courtroom — after all, he can do the Eddie Murphy “white man voice,” but I am certainly not allowed to do any version of a black man’s voice, and neither is Patrick Fitzgerald. How much of an advantage is that? Less of one than the fact that Ted’s only job is to raise reasonable doubt in the minds of the jurors, in whatever voice he can do it. In selecting Ted Wells, Scooter Libby, the antithesis of the trial lawyer, who works his magic in remote offices far from juries and judges, has chosen well.

(hide)